When the Labour Party last came to power in 1997, it created the Human Rights Act 1998 (HRA) to “bring rights home”. Before this, a UK citizen could only challenge a breach of their human rights under the European Convention, at the European Court of Human Rights in Strasbourg. Since 1998, breaches can be brought to UK courts.
This was a major constitutional reform. Since 1998, public authorities must uphold human rights and the government must ensure that new legislation is compatible with the HRA. Individuals can seek remedies by judicial review of the decisions of public authorities when their fundamental rights are not respected. It also means that an appeal court can make a “declaration of incompatibility” if UK legislation doesn’t comply with those rights.
These rights are seen as part of Britain’s unwritten constitution, along with the Act of Settlement (1701) and Magna Carta (1215).
History of the European Convention on Human Rights
The Human Rights Act codified the rights found in the European Convention on Human Rights (ECHR), which contained a list of the fundamental freedoms essential for a safe and dignified life. The need for these rights was born out of the horrors of the Second World War. Following the establishment of the Charter of United Nations, where all member states committed to promote and respect human rights, the Universal Declaration on Human Rights was adopted in 1948.
The UK signed the ECHR in 1951. It includes the right not to be tortured, the right to free speech and self-expression, and the right to a fair trial, plus rights against slavery and forced labour. Spearheaded by the UK, this common standard applied across 47 member states of the Council of Europe.
Eleanor Roosevelt holding the English language version of the Universal Declaration of Human Rights, in November 1949. Photo: FDR Presidential Library & Museum
However, it was not until 1968 and Harold Wilson’s Labour government, that individuals could challenge their rights in court. But this was in Strasbourg, at the European Court of Human Rights (ECtHR). As it was not a domestic remedy, it was – and still is – a costly and lengthy process.
Following the HRA becoming UK law, claims can be brought by individuals against public bodies or bodies exercising public functions. The rights that UNISON members rely on most are the following:
- Article 6 – the right to a fair trial
- Article 8 – the right to respect for private and family life
- Article 10 – freedom of expression
- Article 11 – freedom of assembly and association
- Article 14 – the prohibition of discrimination
The Human Rights Act in practice
UNISON has a strong track record in supporting cases that involve the fundamental rights of its members. When the union ran the case challenging the government’s unfair employment tribunal fees regime, the UK Supreme Court confirmed that the constitutional right of access to the courts, which is “essential to the rule of law and is guaranteed by Magna Carta”, was breached by the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013.
The Fees Order was found to be an unlawful interference with the common law right of access to justice, as well as being unlawful for failing to provide an effective remedy for breaches of rights granted by EU law and being indirectly discriminatory against women in its application.
In its reasoning, the Supreme Court referred to the “principle of effective judicial protection as a general principle of EU law, stemming from the constitutional traditions common to the member states, which has been enshrined in articles 6 and 13 of the European Convention on Human Rights…”. When they arise, convention rights are embedded in judicial decision making.
Other examples where UNISON has supported cases involving fundamental human rights include Wandsworth LBC v Vining and UNISON [2017], which said that the statutory exclusion of parks police from collective consultation interfered with the rights to collective bargaining under Article 11 of the ECHR.
UNISON member Fiona Mercer, above centre, with her legal team, including Shantha David second left. Image: Marcus Rose
And in April 2024, the Supreme Court agreed with UNISON member Fiona Mercer that the law fails to provide protection to strikers against sanctions short of dismissal.
Fiona (pictured above) had been involved in a dispute over her employer, Alternative Futures Group’s plans to cut payments to care staff who did sleep-in shifts. The employer was not happy, suspended her and barred her from going into work or contacting colleagues during the action.
As Fiona’s case progressed through the tribunals and courts, the government itself intervened against her. Ultimately, the Supreme Court found that section 146 of the Trade Union Labour Relations (Consolidation) Act (TULRCA) is incompatible with Article 11, because of that failure to protect striking employees from any actions intended to deter or penalise workers from taking part in lawful strike action.
For the first time in employment law, the court made a “declaration of incompatibility”, namely that UK law (s.146 TULRCA) is incompatible with Article 11. In other words, striking members must have laws that protect them. UNISON will lobby the new Labour government to change the law to reflect this.
So why have the Conservatives been so unhappy with the Human Rights Act?
The HRA 1998 came into force in October 2000. When making their decisions, judges in the UK have recognised the requirement to consider European Convention rights and decisions around them, to ensure they comply with the HRA. Further, UK judges have influenced the thinking of the ECtHR as evidenced in its judgments and borne out by the fact that decisions of UK courts are rarely overturned by that court.
Parliament’s independence has not been affected in all of this, as it can choose to make correcting legislation where courts identify breaches of convention rights – or not. UNISON’s view is that where breaches of convention rights or the HRA are identified by courts, the government should be duty bound to lay amending legislation. UK courts have ensured in its application of the HRA and convention rights that its citizens have certainty in the judicial process, by providing clarity in the law.
Post Brexit
Post Brexit, the UK and the EU agreed by way of a political declaration, made on 22 November 2018, that their future relationship should incorporate the UK’s commitment to respect the framework of the European Convention on Human Rights.
The Conservative government was, however, intent on limiting the scope of the HRA. UNISON responded to the Independent HRA Review, whose basis for consultation was a “… perception that, under the HRA, courts have increasingly been presented with questions of ‘policy’ as well as law”.
As a starting point, the union’s legal team reminded the government of the UK’s clear commitment to uphold its obligations under the HRA and the clear understanding that the UK’s fundamental commitment to human rights is steeped in common law tradition.
The team also categorically stated full support for the ECHR, for the provisions of the HRA and for UK judges making decisions under those provisions.
We said that, in a fully functioning democracy, no government should be afraid of its decisions being challenged within a judicial system that has the jurisdiction to ensure compliance with the principles in the HRA. We pointed out that the judiciary must, when asked, determine the lawfulness of policy decisions, and this is within the role of the judiciary.
The outcome of the independent review was, in short, that things were working well and should remain as they are. It did, however, propose a programme of civic and constitutional education in schools, to ensure there is sufficient public understanding of constitutional laws such as the HRA. UNISON would welcome that.
Despite this, the Conservative government opened a further consultation on Human Rights Act reform and a Modern Bill of Rights. This consultation said UK courts had created a “democratic deficit” by shifting the “law-making power away from Parliament towards the courts”. UNISON’s legal and policy teams responded by saying that this view did not accurately reflect the well-reasoned decisions made by UK courts.
Instead, it focused on a few cases that had caught the public’s attention. On balance, the last government’s proposed amendments sought to narrow the effectiveness of the convention rights by limiting or removing redress against breaches of such rights. In addition, the separate proposals of that government to limit the ability to judicially review decisions of the state, if enacted, would in effect have worked together to limit access to justice.
The future
The UK has a long and proud tradition of access to justice and respect for the rule of law. The lord chancellor, when taking office, swears to respect that rule of law. The HRA is working as it should in a modern democratic society. By its nature, that society is complex and evolving, and good governance requires balancing multiple competing interests. The HRA, and the public bodies and courts acting under it, are well attuned to doing so.
We have a new Labour government that respects the rule of law and our rights and responsibilities under the HRA. Long may that continue.
